‘The control of access to church for bellringing purposes [is] analogous to the control of sporting associations’
TH v Chapter of Worcester Cathedral et al (2016) High Court (Administrative) 1117, at para 77.
In this case, the Chapter forbade a bellringer from ringing at the Cathedral after a ‘safeguarding’ investigation made findings of sexually inappropriate conduct against him. The bellringer applied for judicial review of the decision on various grounds, including breach of his human rights.
The court granted the bellringer anonymity, but refused his application. There was no jurisdiction to review the Chapter’s decision, because the Chapter was not exercising any ‘governmental or public administrative function’ in taking the decision (para 67). It was merely exercising a proprietary, and private, right (para 71). The Chapter controlled the bell-tower on behalf of the Cathedral, and was therefore entitled to decide who might or might not enter it. Although its decision was motivated by concerns about safeguarding, the Chapter was not acting as a safeguarding authority or exercising a legal safeguarding power.
(The informative and erudite blog Law and Religion UK provides a detailed summary of this case, posted 20th May 2016.)
The bellringer brought his claim merely as a private citizen aggrieved by the action of a public authority. He did not attempt to argue that a Cathedral bellringer is an officeholder of the Cathedral, or that the Chapter’s decision had wrongfully interfered with his tenure of an office.
The Administrative Court’s likening of bellringing to a sporting or recreational activity (as quoted above), rather than to a strictly ecclesiastical function, is supported by a dictum in Pearce and Hughes v Rector of Clapham (1830) 162 English Reports 1063. As the Court of the Arches pointed out in that case, ecclesiastical law only requires a church to possess one bell, not a whole ring of bells. ‘There must be a bell to ring to church, and to toll at funerals: but that is all’ (p.1065). Canon F8 now provides for ‘at least one bell to ring the people to divine service’.
On Sundays, the ring of bells usually falls silent 5 or 10 minutes before the time of divine service, and the bellringers depart. The single bell is then rung until the service begins. It is this single bell that performs the constitutional function prescribed by ecclesiastical law, not the ring of bells that precedes it.
The canons of 1603 restricted the recreational use of bells. Bells were ‘[not] to be rung superstitiously upon Holy Days or Eves abrogated by the Book of Common Prayer, nor at any other times, without good cause to be allowed by the Minister … and by [the churchwardens]’ (canon 88). Persons who disturbed divine service by ‘untimely ringing of bells’ suffered ecclesiastical discipline (canon 111).
Canon F8 now provides that ‘No bell … shall be rung contrary to the direction of the Minister’. The incumbent controls the belfry of the parish church, just as the Chapter does the Cathedral belfry. Churchwardens are said to have the property in any parish bells and bellropes.
However, while ecclesiastical law makes certain provision for bells, the bellringer himself would seem to be ‘a person unknown to ecclesiastical law, either as an official of the Church, or as a servant of the parish’. This dictum was originally applied to organists rather than bellringers, but it is no longer true of organists.
It may be instructive to compare the relationship of bells and organs, and those who operate them, to ecclesiastical law. The Pearce case concerned a faculty for the installation of a new organ (which was granted). The Court of the Arches held that
‘Most certainly an organ is not necessary in a parish church for the decent performance of worship [any more than a ring of bells]: therefore the parishioners are not bound to provide an organ: but, though it is not necessary, it is extremely decent, proper and even customary in a parish … of extent and opulence’ (p.1064).
On this view, an organ has the same ecclesiastical status as a ring of bells. It is a desirable, but not essential ornament, of divine service. The revised canons still do not provide that parish churches must have organs (or any musical instruments). However, since 1988, ecclesiastical law has addressed the appointment and removal of parish organists. Canon B20(1) provides that
‘the functions of appointing any organist, choirmaster … or director of music, and of terminating the appointment … shall be exercisable by the minister with the agreement of the parochial church council [PCC], except that, if the archdeacon … in the case of the termination of the appointment, considers that … the requirement as to the agreement of the PCC should be dispensed with, the archdeacon may direct accordingly’.
Thus the effect of canon B20(1) is that the incumbent and the archdeacon may force the dismissal of an organist against the will of the PCC. Canon B20(1) does not address the question of who picks up the bill if a secular tribunal or court rules that a dismissal is unfair, and awards compensation to the sacked organist. Even if the organist is hired on a self-employed basis only, without an employment contract, a dismissal may still breach his rights under the so-called ‘equality’ laws.
A cathedral, unlike a parish church, must have a ‘director of music’ by law (Cathedrals Measure 1999, s.9(1)(g)). Further provision concerning this office is a matter for the constitution and statutes of the particular cathedral.
It seems that parish organists, unlike their cathedral counterparts, cannot be officeholders. The case of Royce (1940) 1 Chancery 514 concerned a bequest ‘for the benefit of the [parish] choir’. There was a dictum of Lord Hardwicke which apparently suggested that such a gift might be invalid, ‘as choristers never were allowed in parochial churches’ (p.518).
However, the court allowed the bequest, and offered this clarification:
‘what perhaps the Lord Chancellor [Hardwicke] had in mind … [was] that, as distinguished from a cathedral or collegiate church, of which the choristers might still remain part of the body [i.e they are part of the cathedral or college foundation], in parochial churches … choristers were not recognised as part of the church body or organisation … But to say that it was illegal to have a choir in the parish church … [is] a proposition for which there is no authority’ (pp.518-520).
There is no specific reference here to an organist or choirmaster, but the case suggests that the members of a parish choir, and by implication its organist or director, cannot be officeholders. Therefore they must either be volunteers from the congregation, or paid servants or contractors.